A St. Louis judge dismissed a motion for a new trial Friday in the case of a prisoner the top prosecutor there says is innocent.
In denying the motion, 22nd Circuit Judge Elizabeth Hogan said in her ruling that the request to vacate Lamar Johnson’s 1995 murder conviction was 24 years too late. Missouri laws do not allow her to review such claims, she found.
The city of St. Louis Circuit Attorney Kimberly Gardner plans to appeal the ruling, press representative Susan Ryan said. One of Johnson’s attorneys, Lindsay Runnels, said they are reviewing the judge’s decision: “Not a single word addresses the clear, convincing, and overwhelming evidence that Mr. Johnson is innocent.”
Last month, Gardner filed a motion for new trial asking the court to overturn Johnson’s murder conviction after a review by her office’s conviction integrity unit uncovered a slew of evidence that called Johnson’s guilt into question. In the motion, Gardner’s office said that police fabrications and prosecutorial misconduct led to Johnson’s wrongful conviction.
In October 1994, Marcus Boyd was gunned down on his porch by two ski-masked assailants. Another man, James Gregory Elking, was on the porch with Boyd but was left unharmed. He identified Johnson as one of the shooters at trial, but has since recanted. Elking was paid more than $4,000 after he agreed to cooperate with authorities, but that evidence was withheld from the defense, the motion for a new trial states.
Johnson remains imprisoned at the Jefferson City Correctional Center.
After Gardner’s office filed the request to overturn Johnson’s conviction in July, Hogan on her own authority appointed the Missouri Attorney General’s office to also represent the state in the case. In court Hogan explained that she had done so because of a potential conflict the circuit attorney’s office had in alleging wrongdoing by a former employee.
The judge’s appointment of the state attorney general led to a sharp rebuke from more than 40 local elected prosecutors across the country who, in a friend-of-the-court-brief, balked at the idea that Gardner’s choice to correct an unjust conviction constituted a conflict.
Missouri Attorney General Eric Schmitt’s office said in a legal brief that Hogan was right to appoint the office to assist in representing the state in the case, and that regardless Hogan has no right to review the matter. Missouri currently lacks a process that allows for the review of old convictions in the circuit court where the case originated.
The attorney general’s office did not respond to a request for comment.
Last week, Gardner’s office in a motion joined by Johnson’s attorneys asked the judge to dismiss the attorney general’s legal brief, noting that while Gardner was elected by voters in St. Louis, the Attorney General was appointed by a sitting governor who also was not elected to that post by Missourians.
Instead, Hogan sided with the attorney general’s office.
Hogan said in her ruling Friday that she had appointed the state attorney general’s office to the case due to her concerns about what she believed were two conflicts of interest: Attorneys for Johnson may have violated court rules in interviewing former jurors, and that the circuit attorney was alleging prosecutorial misconduct against a former employee.
In Hogan’s defense of appointing outside counsel, she contended that attorneys from the Midwest Innocence Project and the Circuit Attorney’s Office had violated settled laws that prohibit jurors from speaking about cases after verdicts have been rendered.
“The Court has never received a request, nor did it, in its discretion, allow any individual to contact any of the jurors for any purpose in this matter,” Hogan said in her ruling. When Gardner’s office became aware of what Hogan said were violations by the defense, the prosecutor did not alert the court but instead used the information and released that information to the media. That, she wrote, caused concern about the “integrity” of the legal process.
Hogan also noted that after filing the motion, the circuit attorney chose to release public documents associated with the case to national media outlets.
The judge said that Gardner’s office was not following the Innocence Project’s guidelines on how conviction integrity units should operate, since the assistant circuit attorney on the case, Jeffrey Estes, was not exclusively dedicated to reviewing past convictions.
In relation to the more than $4,000 in undisclosed payments made to key eyewitness Elking, the judge noted that no one from the agency that made the payments was interviewed regarding procedures and practices for relocating crime victims. “This missing information would suggest that the allegation of prosecutorial misconduct is non-conclusory,” she wrote.
Hogan said in her ruling that there was no evidence provided that assistant circuit attorney Dwight Warren, who prosecuted the case against Johnson, was aware of the payments and called it “troubling” that Estes had not asked eyewitness Elking any questions during a deposition.
Runnels, one of Johnson’s attorneys, said in a statement that her team disagreed with Hogan’s observation that payments to a victim can be concealed because they come from a victim’s compensation fund.
“The United States and Missouri constitutions require disclosure of impeaching and exculpatory evidence and we believe cash payments to the sole eyewitness — who has recanted his manufactured identification — clearly fall into that category,” she said.
Hogan in her ruling said that she believes both Johnson’s attorneys and the circuit attorney had exhibited “problematic conduct” and that, to protect the integrity of the legal process, she appointed the attorney general’s office.
The business manager of the police union representing most rank-and-file St. Louis Metropolitan police officers, Jeff Roorda, has publicly and repeatedly clashed with Gardner. He told Injustice Watch last month in a phone interview after Johnson’s motion for a new trial was filed that Gardner was at war with police, and has “no integrity.” The judge’s husband, Joseph Hogan, has represented members of Roorda’s St. Louis Police Officers Association on criminal and disciplinary matters in recent years.
In one case, the judge’s husband represented St. Louis Metropolitan Police Department officer Rory Bruce. The officer was acquitted of assault charges in 2013, which were brought after a video surfaced showing Bruce hitting a handcuffed juvenile. At that time, Joseph Hogan told the St. Louis Post-Dispatch that the union was providing the payment for his legal services.
Joseph Hogan also recently represented St. Louis police officer Mark Taylor, who pleaded guilty last year to a federal bribery charge for his role in a scheme to pass on unredacted information about car accident victims to a chiropractor in exchange for cash.
The judge’s husband also represents non-police defendants in criminal cases according to court records. Unlike several other attorneys who have also represented members of the police union in criminal and disciplinary matters, Joseph Hogan does not appear to have donated to Roorda’s election campaign.
Elizabeth Hogan is currently presiding over two cases in which St. Louis Metropolitan police officers were charged criminally. According to court records, no issue has been raised regarding a conflict with the judge presiding over the cases of William Olsten or Joseph Schmitt, who are both charged with assault and armed criminal action after an off-duty shooting outside of a bar earlier this year.
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